MUHAMMD SAFDAR Versus State
ALI ZIA BAJWA, J.--- Through this single judgment, we intend to decide Crl. Appeal No.716-J/2019 titled 'Muhammad Safdar and another v. The State' filed by the appellants against their convictions and sentences and Murder Reference No.36/2019 titled 'The State v. Muhammad Safdar, etc.' forwarded by the learned trial court under Section 374, Cr.P.C. for confirmation or otherwise of death sentence awarded to the convicts, as these are arising out of one and the same judgment of the learned trial court.
2 Muhammad Safdar son of Arshad Ali alias Irshad, caste Sheikh, resident of Chak. No.188 Murad, Hasilpur, District Bahawalpur and Muhammad Saleem son of Bagh Ali, caste Jhangar, resident of Mat Wala and also resident of Muhammad Pur Mahwan, Tehsil Minchinabad, appellants, were involved in case FIR No.141/2019, dated 23.05.2019, offences under Sections 302, 364-A, 377, 201 and 34, P.P.C., registered with Police Station Meclode Gunj, District Bahawalnagar. They were tried by learned Additional Sessions Judge, Minchinabad, District Bahawalnagar, under the aforementioned offences and learned trial court, vide judgment dated 31.10.2019, convicted and sentenced both the appellants in the following terms: -
> Under Section 302(b)/34, P.P.C., sentenced to death as Ta'zir with the direction to pay Rs.5,00,000/- each as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof, they were directed to undergo S.I. for six months each.
> Under Section 364-A/34, P.P.C., sentenced to death with direction to pay Rs.5,00,000/- each as compensation to legal heirs of the deceased in terms of Section 544-A, Cr.P.C. to be recovered as arrears of land revenue and in case of default in payment thereof, they were directed to undergo S.I. for six months each.
> Under Section 377/34, P.P.C., sentenced to undergo imprison-ment for life with fine of Rs.1,00,000/- each and in case of default in payment thereof, they were directed to further undergo S.1. for six months each.
> Under Section 201/34, P.P.C., sentenced to undergo R.I. for seven years with fine of Rs.50,000/- each and in case of default in payment thereof, to further undergo S.I. for six months each.
3. The prosecution case structured upon the story as narrated in the FIR (Exh.PG/1) lodged on the written application (Exh. PG) of Saif Ullah (PW-5) is that the complainant is resident of Basti Nabi Pura and used to earn his livelihood through labour. On 19.05.2019 at 9:00 a.m. the complainant was present in his house. Muhammad Zubair, elder brother of the complainant, visited his house and told that he was proceeding to 'Sunday Bazar' situated near Petrol Pump of Peer Shehzad Ahmed for selling cloth. He also showed his intention to take Abdul Rehman son of the complainant with him. The complainant allowed him to do so on which Abdul Rehman minor aged 7 years accompanied his uncle (Taya) towards `Sunday Bazar'. At about 2:00 p.m. Muhammad Zubair made a telephonic call to the complainant conveying him that he got busy in selling cloth and Abul Rehman was not present there. He further asked the complainant to check at his residence whether deceased had gone there. The complainant visited his house, however, Abdul Rehman was not found present there. On which the complainant became worried and he along with Shah Behram son of Rafique, caste Bodla, resident of Nabi Pura and Irshad son of Muhammad Sharif, caste Dogar, started searching for Abdul Rehman, however, his whereabouts could not be traced out. The complainant alleged that unknown accused persons had kidnapped his son. The complainant reached police station and presented his written application before Pervaiz Iqbal, S.I. (PW-11) on the basis of which formal FIR was chalked out.
4. After registration of the case Investigating Officer (PW-11) visited the place of kidnapping and prepared rough site plan (Exh.PQ). On the same day, the complainant appeared before the Investigating Officer at police station, submitted another application (Exh.PH) wherein he nominated both the appellants and also presented USB (P-7), which was secured vide recovery memo Exh.PR. The Investigating Officer recorded statements of the PWs under Section 161, Cr.P.C. On 24.05.2019 both the appellants (Muhammad Safdar and Muhammad Saleem) were arrested by the Investigating Officer and he obtained their physical remand. During the course of interrogation both the appellants disclosed that after kidnapping Abdul Rehman they committed sodomy and murdered him. They further disclosed that thereafter they buried him in the fields. Firstly Muhammad Safdar appellant led to the place where he along with his co-accused committed sodomy with Abdul Rehman and after his murder buried him and thereafter Muhammad Saleem also led to the place where sodomy was committed with the minor and by committing his murder both the appellants buried the dead body. Both the appellants got recovered the dead body of the minor while digging the soil. The Investigating Officer prepared memo of pointation of place of burial of dead body (Exh.PJ). He inspected the dead body, prepared injury statement (Exh.PS), drafted inquest report (Exh.PS/1) and dispatched the dead body to mortuary under the escort of Muhammad Adnan 390/C (PW-3) for autopsy. He also secured blood-stained soil from underneath the dead body vide recovery memo Exh.PK and took into possession slipper (P-4) of the minor deceased through recovery memo Exh.PL. He prepared rough site plan of the place of recovery of dead body (Exh.PT). After postmortem examination last worn clothes of the deceased: qameez (P-1), vest (P-2) and shalwar (P-3) were produced before the Investigating Officer, which were secured vide recovery memo Exh.PF. He also produced samples of swabs and visceras for forensic and DNA before the Investigating Officer. On 26.05.2019, the Investigating Officer got conducted potency test of both the appellants through Dr. Mujahid Ali Babar (PW-10). On 02.06.2019 Muhammad Safdar appellant in pursuance of his disclosure, led to the recovery of kassi (P-6), which was taken into possession vide recovery memo Exh.PN. Thereafter Muhammad Saleem after making disclosure led to the recovery of kassi (P-5), which was taken into possession vide recovery memo Exh.PM. On 03.06.2019, the appellants were taken to Punjab Forensic Science Agency, Lahore for DNA sampling. On the direction of the Investigating Officer and pointing out of the PWs, Muhammad Aslam Wattoo Patwari (PW-2) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PE and Exh.PE/1), which was made part of the file. On 17.07.2019, he took into possession thirteen snaps (P-8/1-13) of the place of occurrence, dead body and photographs made from the USB (P-7) containing CCTV-footage vide recovery memo Exh.PV. After completion of investigation, the Investigating Officer got submitted report under Section 173, Cr.P.C. against the appellants through S.H.O. of police station.
5. On submission of report under Section 173, Cr.P.C., learned trial court indicted the appellants vide order dated 01.08.2019, to which they pleaded not guilty and claimed trial. Prosecution, in order to establish its case against the appellants, produced as many as eleven (11) prosecution witnesses.
6. Saif Ullah (PW-5) is complainant of the case while Shah Behram (PW-6) supported his version. Muhammad Hanif (PW-7) and Ghulam Mustafa (PW-8,) are witnesses of extra-judicial confession. Muhammad Aslam Wattoo Patwari (PW-2) prepared scaled site plan of the place of occurrence. Investigation in this case was conducted by Pervaiz Iqbal, S.I. (PW-11).
7. On 24.05.2019, Dr. Muhammad Ibrahim, Medical Officer (PW-1) conducted postmortem examination over the dead body of deceased and observed as under:-
"A dead body of 7-years old boy was lying on mortuary table wearing blue coloured Qameez P-I and white Bunyan P-2, blue coloured Shalwar P-3 wrapped around the neck like a ligature. Body was putrefied and maggots were present on the body. Mouth was opened, eye balls were missing, left upper limb and left lower limb were missing, only humerus bone was present. On exploration of chest, three ribs (third, fourth and fifth) were also found fractured; 4cm from left side of sternum. Skin on the head was missing, posteriorly. After exploration of all cavities, various samples were taken i.e. (1) swabs from anal canal for semen detection and DNA type, (1) Hyoid bone, (ii) Skin from ligature site, (iv) Nails, (v) brain, (vi) Stomach, (vii) Intestines small and large with their contents and (vii) Preservative of formalin and saturated saline."
After conducting postmortem examination , doctor rendered following remarks: -
"After external and internal post mortem, various samples were taken and sent to histopathology chemical examiner, and for DNA type.
After receiving reports of chemical examiner, drugs poison were not detected in brain and stomach in Item No.01. Report of histopathology. Histological examination of the sections from heart, lungs and kin, reveals autolytic changes, so, no opinion can be expressed. Histological examination of the sections from hyoid bone reveals bone. The soft tissue element is totally autolysed. The cellular and nuclear details have reduced to granular debris. Therefore, no opinion could be expressed. According to Forensic, DNA and serology analysis, report dated 27.05.2019 No.1: Human blood was identified on item No.2. No seminal material was found on item No.1. Therefore, no further DNA analysis was conducted on this item and supplementary report stated that no seminal material was found, on items Nos.3.1 to 3.3. No semen stain was observed on items Nos. 4 and 5.
Thus, in my opinion, death occurred due to fracture of ribs and associated injury to lungs and this cause damage to vital organs lungs and heart, that leads to cardiopulmonary failure and resulted into death. Fracture of ribs was ante-mortem in nature. As according to the DNA and serology report, no seminal material was found; no semen stain was observed, so, no opinion can be given about sodomy whether occurred or not.
Probable time between injury and death was 1 to 6 hours. Probable time between death and post mortem was 3 to 5 days."
Statements of rest of the prosecution witnesses, more or less, are formal in nature.
8. After completion of prosecution evidence, statements of the appellants under Section 342, Cr.P.C. were recorded by the learned trial court. They professed their innocence and pleaded false implication in the case. They opted neither to appear as their own witnesses on oath as required under Section 340(2), Cr.P.C, nor to produce evidence in their defense. Upon completion of trial, the learned trial court found case against the appellants to have been proved beyond shadow of reasonable doubt, thus, convicted and sentenced them as mentioned and detailed above.
9. Arguments heard, record perused.
10. The prosecution case mainly hinges upon circumstantial evidence i.e. last seen, extra-judicial confession recovery of dead body/shoes of deceased, medical evidence and DNA.
11. As per prosecution version on 19.05.2019 at 9:00 a.m. Abdul Rehman, minor son of the complainant, accompanied his paternal uncle (Taya) towards 'Sunday Bazar' at his cloth-stall and at 2:00 p.m. he went missing from there while the matter was reported to the police on 23.05.2019 at 4:20 p.m. after the delay of about four days through a written application (Exh.PG) against unknown accused persons.
12. As far as the prosecution version qua last seen is concerned, admittedly there is no person who had lastly seen the deceased in the company of the appellants. To substantiate this aspect of the case the prosecution produced CCTV footage taken from the camera of Dewan Petrol Pump. However, admittedly the owner of said Petrol Pump or any other person who produced CCTV footage to the Investigating Officer was joined into investigation nor produced during the course of trial to prove this aspect. The Investigating Officer while appearing in the witness-box admitted this fact in the following terms:-
"I had not recorded statement of Dewan Shahzad Chishti owner of the petrol pump."
According to statements of Muhammad Hanif (PW-7) and Ghulam Mustafa (PW-8) when they joined investigation on 23.05.2019, after recording their statements under Section 161, Cr.P.C, Investigating Officer took them to Dewan Petroleum and showed them camera footage of the date of missing of Abdul Rehman. Relevant extract of statement of Muhammad Hanif (PW-7) in this regard is reproduced hereunder:-
"The police took me and Ghulam Mustafa to Dewan petroleum and showed us the Camera footage of the date of missing of Abdul Rehman in which we identified Muhammad Safdar accused and Saleem accused persons present before court, while taking deceased with them."
Ghulam Mustafa (PW-8) while describing this fact deposed as under:-
"The police took us to Dewan petroleum and showed us the Camera footage of the date of missing of Abdul Rehman in which we identified Muhammad Safdar accused and Saleem accused persons present before court, while taking deceased with them and had identified it before police, thereafter we went to home."
However, statements of PW-7 and PW-8 are contradicted by the Investigating Officer on this aspect. Said witness while appearing in the dock stated that on 23.05.2019 he had not seen the footage. Relevant portion of his statement has been reproduced hereunder:-
"It is correct that vide statement of Saif Ullah under section 161, Cr.P.C. on 23.05.2019 he had not disclosed before me that he himself or the PWs had watched the CCTV footage. It is correct that I myself had also not seen the footage on that day."
Furthermore, during the course of trial when statements of the complainant, Muhammad Hanif (PW-7) and Ghulam Mustafa (PW-8) were recorded, footage was not played in the court room in order to get the accused identified by those witnesses. Although CCTV footage was sent for forensic analysis for identification of the accused but according to report of Punjab Forensic Science Agency (Exh.PX), "The forensic facial comparison of the pictures of deceased Abdul Rehman and accused persons Muhammad Safdar etc (Item # 2 to 12) with footage in USB (Item # 1) was inconclusive due to minimal facial feature information of the persons available in Item # 1)." In this background Closed Circuit Television (CCTV) footage being inconclusive is of no avail to the prosecution case.
13. Another piece of evidence which the prosecution relied upon is extra judicial confession of the appellants allegedly made before Muhammad Hanif (PW-7) and Ghulam Mustafa (PW-8). However, bare perusal of statements of both the prosecution witnesses reflects that alleged extra-judicial confession was made jointly by both the appellants. As far as admissibility of joint extra-judicial confession, which as per pronouncements of apex Court is universally regarded as inherently weak evidence 1 is concerned, the same has been deprecated by superior courts of the country from time-to-time. In Muhammad Ismail 2 it has been categorically held that joint extra-judicial confession is inadmissible in evidence. Relevant portion of the above dictum has been reproduced hereunder:-
"The prosecution had also maintained that some of the appellants had made an extra-judicial confession but the High Court had itself discarded the evidence relating to the extra judicial confession as the same was not only unnatural but was also inadmissible in evidence as the extra judicial confession attributed to the appellants was a joint confession."
(Underlined for emphasis)
Reference in this regard can also be made to the case reported as Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231). Hence the extra-judicial confession produced in this case being joint one has no evidentiary value, which is accordingly discarded.
14. Prosecution also attempted to make evidence of PW-7 and PW-8 as one of wajtakkar (res gestae) as these witnesses stated that they came across the appellants on 23.05.2019, who were coming along with their kassis looking depressed. According to the autopsy report which was conducted on 24.05.2019 the duration between death and postmortem was 3-5 days, therefore, meeting of appellants with the aforementioned prosecution witnesses cannot be considered as evidence of wajtakkar as the same does not coincide with the medical evidence.
15. As far as recovery of dead body on the pointing out of the appellants is concerned, prosecution produced Shah Behram (PW-6) to substantiate this aspect of the case. Though this prosecution witness stated that the dead body was recovered in his presence, however, during the course of cross-examination he candidly admitted that statement recorded by the Investigating Officer was not read over to him. Relevant portion is reproduced as under:-
"Statements recorded by police were not read over to me and I had not thumb marked my statements."
Moreover, Pervaiz Iqbal,, S.I. (PW-11)/ Investigating Officer while appearing in the witness box stated that Shah Behram (PW-6) and Irshad (given up), witnesses of recovery of dead body, had not made statements before him that the dead body was discovered on the pointing out of the appellants. Relevant extract of his statement has been reproduced herein below:-
"Shah Behram and Irshad had not made statement before me that dead body was discovered on the disclosure of the accused."
This fact alone creates serious cracks regarding the prosecution story qua recovery of dead body allegedly on the pointing out of the appellants in presence of Shah Behram (PW-6) and Irshad (given up PW).
16. Although it is the prosecution case that the Investigating Officer had also recovered shoe (slipper) from the fields, which according to prosecution version was of the deceased, however, bare perusal of its recovery memo (Exh.PL) reflects that it is nowhere mentioned that the shoe recovered was that of the deceased. Moreover, there is no memorandum of identification available on record to establish that the complainant or any other prosecution witness identified the recovered slipper as belonging to deceased.
17. Next comes the medical evidence, which has been advanced through the statement of Dr. Muhammad Ibrahim, Medical Officer (PW-1), who conducted postmortem examination over the dead body of deceased. As no specific role qua inflicting injuries on the person of deceased has been ascribed to any of the appellants, therefore, the same is not of much importance in this case. Even otherwise, it is well settled law that medical evidence is confirmatory in nature and it can only confirm the version of prosecution regarding seat of injury, kind of weapon used, probable time between injury/death and medical examination/autopsy, but it cannot point out the real culprit who has caused such injury/death.
18. Now we advert to the recovery of kassis (P-5 and P-6) allegedly recovered on the pointing out of the appellants. Although those kassis were stated to be stained with blood, however, admittedly the same were not sent to the Punjab Forensic Science Agency, Lahore for forensic analysis to ascertain the presence of blood on them. Thus, recovery of kassis does not advance the prosecution case any further. Even otherwise, it is trite law that when substantive evidence produced by the prosecution fails to connect an accused person with the commission of crime or is disbelieved then corroborative evidence would be of no help to the prosecution as the corroborative evidence cannot by itself prove the guilt of an accused. It was observed in Naveed Asghar 3 by the revered Supreme Court of Pakistan as infra:
"Even otherwise, recovery of weapon of offence is only a corroborative piece of evidence; and in absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged. When substantive evidence fails to connect the accused person with the commission of offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case."
Same view was taken by the Supreme Court of Pakistan in Ishtiaq Masih v.
The State 2010 SCMR 1039, Noor Muhammad v. State 2010 SCMR 97 and Muhammad Afzal alias Abdullah and others v. The State and others 2009 SCMR 436.
19. It is borne out from record that after postmortem examination of the deceased, the Medical Officer/PW-1 had separated two anal swabs and those were sent to Punjab Forensic Science Agency, Lahore along with shalwar, qameez and piece of cloth (bunyan) for DNA testing along with buccal swabs of both the appellants. However, as per report (Exh.PC), no seminal material/semen stains were found/observed, therefore, no further test was conducted. DNA report (Exh.PC) is of no avail to prosecution to connect the appellants with the commission of crime. In this backdrop there is no cogent material to establish that the appellants had committed sodomy or sexual assault with the victim/deceased and their potency tests alone are not sufficient to establish their nexus with the crime in question
20. It is observed by this Court that there are always chances of fabricating evidence in cases which are solely based on circumstantial evidence, hence, in such cases, the Courts should take extra care and caution. In the same way, in a murder case, circumstantial evidence should be like a well-knit chain, one end of which should touch the dead body of the deceased and the other the neck of the accused, whereas no link in chain of the circumstances should be broken. In case, any link is missing from the chain, it breaks the whole chain and renders the same unreliable. 4 It is trite law that in cases where direct evidence is not available and the whole prosecution case hinges upon circumstantial evidence, the same must be of such unimpeachable character that it should exclude all the hypothesis of innocence of an accused. In such like cases, no link in the chain should be missing and all circumstances must lead to the guilt of the accused. We are afraid that such continuous chain of evidence is not available on the record in this particular case.
21. All the above narrated facts and circumstances, when evaluated on judicial parlance, reflect that the prosecution absolutely failed to bring on record any convincing/reliable evidence/material to establish that the appellants were involved in the commission of the alleged occurrence. It is established principle of law that for extending benefit of doubt, it is not necessary that there should be several circumstances, rather one circumstance is sufficient to bring suspicion in the mind of the Court and to acquit an accused, not as a matter of grace, but as of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of Tariq Pervez v. The State (1995 SCMR 1345), Riaz Masih alias Mithoo v. The State (1995 SCMR 1730), and Muhammad Akram v. The State (2009 SCMR 230). Respectful reliance can also be placed on verdict rendered by prestigious Supreme Court of Pakistan in "Najaf Ali Shah v. The State" (2021 SCMR 736) wherein it was held as infra:
"It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the petitioner"
Same principle was also reiterated in "The State through P.G. Sindh and others v. Armed Omar Sheikh and others" (2021 SCMR 873).
"Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation."
22. In view of all the facts and circumstances as discussed above, this Court is fully convinced that the prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt and learned trial court was not justified to convict them, therefore, while allowing Crl. Appeal No.716-J/2019, conviction and sentence recorded by the learned trial Court are set aside and they are acquitted of the charge by extending them benefit of doubt. The appellants are directed to be released forthwith if not required in any other case.
23. Murder Reference No.36/2019 forwarded by the learned trial court for confirmation of death sentence awarded to the convicts fails, which is answered in NEGATIVE. Death sentence is NOT CONFIRMED.
JK/M-134/L Appeal allowed.